In most elections, particular issues—immigration, inflation, school choice—take greatest prominence while the larger philosophical questions for which those issues are a proxy remain just barely out of sight. But in this election these big questions are beginning to be openly debated. This is in part because some Democrats have framed the election as a contest between fascism and democracy. But it is also because the Republican vice presidential candidate, J. D. Vance, has espoused views—one being that the votes of childless citizens should count less than those of citizens who are mothers and fathers—that challenge time-honored principles of liberal democracy.
Vance’s views could be called illiberal so long as “illiberal” is understood as neither a criticism nor a slur but as an accurate descriptor of a set of ideas that ultimately rejects the tenets of what John Rawls and others have called “political liberalism.” Political liberalism rests on the twin foundations of pluralism and fallibilism. Pluralism tells us that there are many systems of value—some religious, some not—each of which offers itself as the necessary guide to personal and collective action. (Follow us and not those other guys and you will be saved.) Fallibilism teaches us that there is no way of picking out the true prophets from the many on offer, for however we make the effort, whatever method of assessment we employ, our reasoning will be infected by substantive assumptions of the kind we are trying to go beyond. The lesson is triple: (1) each of us is situated in some perspective that limits what we can see; therefore (2) any judgement that appears right and obvious to us will be partial—in the double sense of biased and less than general—and vulnerable to objections issuing from perspectives other than our own; and (3) there is no measure, Archimedean point, or neutral calculus that will enable us to rise above or stand to the side of our situation and thus become capable of disinterestedly assessing the claims and counter-claims of those who promise to put us on the path to salvation. So there we are, committed to ideals and goals but without a mechanism (short of force) of persuading our fellows to join us in the effort to realize them and thereby attain a better way of life. (Sell all you have and follow me.)
What to do? Well, one thing to do is engage in endless wars between contending visions of the good life and hope that holders of the vision you believe in will seize the reins of power and legislate the values you hold dear. That is more or less the story of history up until a certain point (usually located somewhere in the seventeenth century), after which thinkers such as Kant would devise a strategy for outflanking the ideological conflicts that so often led to bloodshed and, on occasion, to genocide. Basically the strategy is to take divisive substantive issues—issues that implicate deep structures of belief—off the political table and relocate them in the private spheres of the home, church, mosque, and synagogue, where they can be fully embraced. Believe what you like and believe it wholeheartedly; but when you step into the public sphere, leave your beliefs behind and comport yourself according to norms and standards that are hostage to no disputable point of view because they are largely, if not wholly, procedural.
What are these norms and standards? Imagine yourself at a four-way intersection with a stoplight. What do you expect of the drivers at the other positions in the intersection? You expect them to obey the formal instructions provided by the light and its colors (red, green, and yellow), and you expect them to honor the rules, often written into traffic laws, of turn-taking. And you, for your part, will be expected to act in a reciprocal fashion, thus facilitating the ordered experience of safely negotiating the world together. No one at the intersection is concerned with the moral or religious commitments of the other drivers; you do not want to know if they are nice to their children or obey the tax laws or buy free-range eggs or belong to this or that political party. You just want them to co-operate. Liberal proceduralism holds out the hope that all of public life can be conducted in this way—people living out their lives in harmony by conforming their public actions to rules and regulations that are attached to no particular ideology but apply to adherents of every ideology. (This is basically the content of Kant’s categorical imperatives.)
For some time now, our political vocabulary has been a reflection and extension of this procedural ideal. When we invoke the public–private distinction (as John Locke does repeatedly in his enormously influential Letter Concerning Toleration), we agree to abide by public reasons—reasons framed in secular, non-sectarian terms—whenever we are in the civic sphere, and bracket, if only temporarily, the reasons that flow from our moral or doctrinal commitments. When we say that ours is a government of laws not men, we reject as illegitimate laws that have been promulgated because they mirror the preferences of some person or group. Law is the arena where your identity as a Christian or Jew or atheist or libertarian is irrelevant—it is beside the point, which is to provide guidance for citizens, a category defined by the formal right to vote and not by the personal, partisan allegiances voters happen to have. When we insist on the separation of church and state—an insistence encoded in the establishment clause of the First Amendment—we warn against allowing policy decisions to be dictated by the tenets of some creed. Religious obligation and legal obligation may intersect at some points, but that is, or should be, the product of accident, not design.
It is time to acknowledge what some of you may be thinking: this form of governing, liberal proceduralism as I have described it, is deeply counter-intuitive. Why should anyone agree to set aside or put on the shelf his or her deepest convictions and accept so severe a limitation on what can be urged in public debate? Some liberal theorists go so far as to argue that in the course of political deliberation you should erase religious sentiments from your mind; not only should you not act on the basis of your religious thoughts, you should not have them. What reason supports this form of drastic abstention (which may not even be psychologically possible)? What do you get in return?
There are answers to these questions. One answer turns back to the fear that animates the emergence of proceduralism in the first place: if we all soft-pedal our beliefs and put our trust in process and accept the policy conclusions the process generates even when these conclusions do not match our desires, the chance of conflict will be diminished, and we will be safer. Another answer names those values that will be honored and strengthened if we accord the views of others the respect we demand for our own—fairness, equity, non-discrimination. But these are liberal values, and while illiberal people (by which I mean non-believers in the primacy of proceduralism) may at times, even most of the time, honor those values, they do not worship them. They worship God or Truth or the Highest Good, and when the choice is between God or Truth or the Highest Good and the doctrine of mutual respect or tolerance of the other, they will choose the former, for to do otherwise would be to deny the very wellspring of their beings, and, again, why would they do that?
Those who choose virtue over process, government tethered to a transcendent norm over government tethered to an arbitrary set of formal rules (that’s just the way we do it around here) also point to what they take to be the negative effects of a proceduralism that is militantly indifferent to the moral status of those who participate in its routines. No ethical or doctrinal test conditions your right to vote or hold office or own property. The requirements are entirely formal—age, financial resources, mental competency—and if you meet them you are qualified to enter into a contract or drive an automobile no matter what dark and base thoughts may reside in your heart. The system regards you as an individual capable of making choices and makes no judgement on your choices provided that they do not transgress the laws of property and bodily integrity without which the right of choice is empty. (Thou shalt not kill and thou shalt not take what is not lawfully yours.) You are enabled and protected not because you believe or don’t believe something but because you occupy the role of citizen, which, again, is an entirely formal category. What is important then (at least in this vision) is that a citizen be free to make his or her own way (within the minimal rules of course); what motives impel that way and what design or goal it winds toward and what impact it might have on the society as a whole are matters not taken into account. The result—and this is the basic anti-liberal complaint—is a nation of siloed monads bound together not by an overriding purpose larger than any of them but by the selfish (in the strongest sense) purpose of getting ahead, where “ahead” is an arbitrary destination yielding no long-lasting satisfaction and therefore leading to another “ahead” that will be no less disappointing. In short, endless self-aggrandizement with nothing inside the self and no genuine community.
This specter (already, some would say, too much realized in an increasingly neoliberal world) has led to calls to action from an array of thinkers in the recent past and present. To varying degrees Adrian Vermeule, John Finnis, Richard John Neuhaus, Alasdair MacIntyre, Robert P. George, Sohrab Ahmari, Yoram Hazony, Patrick Deneen, R. R. Reno, Rod Dreher, and C. C. Pecknold have argued against the view that the act of governing should proceed independently of any moral anchor or agenda. In his book Common Good Constitutionalism Vermeule calls for “a candid willingness to ‘legislate morality.’” There is “no escape from having some substantive vision or other of the common good,” he writes in American Affairs. The liberalism Vermeule would dethrone rests on such a vision whether acknowledged or not. It is a vision of discrete, insular selves filled with nothing but their raw preferences following laws that can only be experienced as an imposition. It is a vision Vermeule would replace with a vision of selves, laws, and institutions all configured and given shape by a common good that defines them and arms them with marching orders; everyone and everything is integrally coordinated by, as he and his co-author Conor Casey put it, “acting consistently with the precepts of the ius naturale (natural law), whose most basic and self-evident injunction is that good is to be done and evil to be avoided.” The test of any proposed law is its relation to the good—not its fairness or the degree to which it extends the franchise and its benefits or its promotion of diversity.
Under the umbrella of this injunction, the suggestion that fertile men and women be given more weight in the political process than the childless makes sense. From the perspective of an enlightenment liberal this proposal is a candidate for immediate rejection because it elevates one among many life choices to a position of primacy and obligation: this is how you should live. But from J. D. Vance’s perspective, an array of choices offered indifferently to citizens is not a positive value; making the right choice is—the choice conducive to the common goods of family and community. One could disagree with Vance’s assumption that childless men and women contribute less to the common good, but anyone who did so would still be playing his game, just making a different move.
Even so small an example as this one allows us to see the crucial difference between a process regime, where the rightness of a policy is a matter of pedigree—does it emerge from the procedures that are set down in law?—and a virtue regime where the rightness of a policy is judged by whether it does or does not bring us closer to moral perfection. The second regime is much more ambitious. Liberalism from Hobbes to Rawls is by and large a maintenance and co-ordination project; the goal is to devise structures that enable persons of vastly different worldviews (Rawls call them “comprehensive doctrines”) to live together in a community of mutual respect. Such structures, if they can be found, will not push those who inhabit them in some particular direction but allow them to go in the direction they prefer. In Kant’s words, “Each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end.” But the idea of seeking happiness in whatever way you see fit is not attractive to the virtue theorist, for whom true happiness is the state of being allied with the principles of goodness, and given that we are not naturally inclined to those principles (the insight of both Hobbes and Christianity, with, of course, a considerable difference) people should not be allowed to linger complacently in the web of personal interests they happen to have acquired but instead should be moved or “nudged” (a word Vermeule uses in common with his sometime co-author Cass Sunstein) to acquire and make their own the sentiments and behaviors that belong to and express goodness. This is what I meant when I said a moment ago that a virtue regime is more ambitious than a process regime. It doesn’t want us to just get along; it wants us to get better.
By what means? Answers to this question vary. Vermeule favors a strong or unitary president (see Alexander Hamilton, Federalist 70) who possesses all the powers of the executive branch, including the power to control federal agencies such as the Justice Department that have often been considered independent. The unitary executive is not a mere functionary who keeps the trains running; he or she is the bearer of a moral message, and it is the job of agencies and their leaders to promulgate and advance that message. No pretense of ideological neutrality here; the “deep state” is populated not by technicians and managers, but by warriors. Patrick Deneen is more bottom-up than top-down. He begins with Aristotle’s declaration that “man is by nature a political animal” and reasons that the social fragmentation fostered by liberalism must be replaced by a renewed commitment to the values nurtured by the close-knit neighborhoods we grew up in (or at least he grew up in). The task is to strengthen institutions that embody the common good and call us to participate in its fashioning: “The nation should be above all devoted to sustain, foster and support the communities that comprise it, and to combat . . . the modern forces that have proved to be so destructive of those constitutive communities.” If there is a disagreement here it is about the best way to realize the virtuous state; both Vermeule and Deneen could sign on to Robert P. George’s argument in Making Men Moral: “Someone who has good reasons to believe that an act is immoral may support the legal prohibition of that act for the sake of protecting public morals without necessarily violating a norm of justice.”
This statement is too general to give direction for what is or is not an immoral act will vary with the kind of virtue to which the state is dedicated. (More than one set of policies can follow from a repudiation of procedural liberalism.) In Mao’s Cultural Revolution, for example, an immoral act is one that continues or supports the old ways—old ideas, old customs, old habits, old culture—that the revolution is determined to purge. Anything that is reactionary, anything that hearkens back to the world of the bourgeois, must be removed so that a transformation of the whole society can be realized. If it is traditional, it is bad. George, Deneen, Vermeule, and perhaps Vance are likely to say the reverse: if it is traditional and bourgeois it is good and should be restored. In 2017, Amy Wax and Larry Alexander, two distinguished law professors, wrote a famous (or infamous) op-ed in the Philadelphia Inquirer warning that unless we revive the virtues and habits of the 1950s, the social disintegration brought about by liberal policies will only increase: “If the bourgeois cultural script”—stable families, restrained sexuality, aggressive patriotism, civic engagement, formal manners, appropriate dress—“cannot be widely reinstated, things are likely to get worse for us all.” It is not difficult to deduce from this call to arms the policies that a virtue regime rooted (or so it is claimed) in Judeo-Christian values would put in place: Prayer in the schools would be restored. Pornography would be criminalized. Abortion would be available in only very special circumstances and pretty much banned. Perhaps the decision constitutionalizing gay marriage would be overturned. No state funds would support transgender research and support. Persons would be required to use bathrooms reserved for the biological sex they were assigned at birth. The rule that churches, synagogues, and mosques can’t endorse political positions and candidates without losing their tax-exempt status might be repealed and the second-class status of faith-based colleges and universities ended. No-fault divorce and contraception could be revisited.
This is not so far-out a list, and much of it is presaged by what has happened to the establishment clause since 1947. In Everson v. Board of Education the Supreme Court was faced with what should have been an easy question. Can New Jersey extend to the parents of parochial school children its policy of reimbursing parents for the costs of busing children to and from school? The question should have been easy because, in the words of James Madison, no citizen should be forced to “contribute three pence only for the support of any one [religious] establishment.” That’s what the establishment clause is for—to prevent public monies being put to sectarian ends. In his majority opinion Justice Hugo Black seems at first to agree; he echoes Madison’s language—“no tax . . . large or small, can be levied to support any religious activities and institutions”—and he invokes Jefferson’s insistence on maintaining “a wall of separation” between church and state.
But then Black immediately breaches the wall by changing the question. In place of Is New Jersey using public funds to benefit a religious purpose? he puts Is New Jersey treating secular and religious parents evenhandedly? That is a free exercise clause question because it is animated by a concern that a religious person’s exercise of his or her faith not be burdened as it would be if parochial school parents were forced to pay twice, once for the public schools they choose not to use and again when they are denied the reimbursement given to their secular counterparts. But burdening the exercise of faith is what the establishment clause enjoins if the exercise in question amounts to state support of religion. By substituting the standard of evenhandedness for the Madisonian standard of non-entanglement, the court opened the way to legitimating any benefit given to religious institutions so long as it also has been given to secular institutions. And that is what has happened. Over the years state monies have been expended for innumerable religious purposes—teachers’ salaries, new buildings, school playgrounds, and a great deal more. The traditional establishment clause policy of not permitting religious interests to influence or control state actions lest generally applicable laws be set aside every time someone raises a religious objection (a position strongly articulated by Justice Scalia in Employment Division v. Smith, ripe for overturning by the present court) has been replaced by policies that give free exercise claims more than the benefit of the doubt. The next time a baker or a florist wants to deny service to gay couples, my bet is that the court will say yes. At least in the area of religious clause jurisprudence, the virtue regime has already arrived.
Will it prevail in the national election? It is of course not on the ballot as such, but it is not hard to discern the opposition between virtue and process, especially in the profiles and statements of the vice-presidential candidates. J. D. Vance has not been shy about declaring that his religious and political commitments are one, are integrated, and while Tim Walz does not seem to be given to philosophical pronouncements, he has provided us with a capsule version of process liberalism: “Mind your own damn business.” That is to say, let me live my life according to my own lights and I will let you do the same. No, Vance and others in his circle would reply, it’s not your lights or my lights; it’s the best lights; it is those we must follow, for to do anything else is to wander in a relativist desert that promises freedom but delivers us to the slavery of momentary and unanchored desire. The response to that is “let me be the judge,” and the response to that response is that God, not you, “shall judge the ends of the earth.”
Nothing so overtly theological is likely to be said today by any of the candidates, but underneath arguments between those who, for example, support “trans rights” and those who believe that the very idea of transitioning from one gender to another is a violation of nature lie theologies that have been at war since the seventeenth century. Are we a rights-based society or are we a truth-based society? Many would like to believe that no choice between these is necessary: surely a respect for individual rights and a reverence for the truth go together. But they don’t. They may at times peacefully co-exist: if there is a general, unexamined assumption that a basic structure of values is uncontroversially and permanently in place, enlarging the category of rights recipients will not seem threatening. But if the extension of rights has the effect of bringing to the center those who have been tolerated but marginalized, the center’s traditional inhabitants will become very nervous and begin to suspect that the truths they took for granted are in danger and must be defended, lest the world as they have always known it be lost. Others, of course, maintain that the dissolution of old, outworn truths is necessary. How will it turn out? I haven’t the slightest idea.
